This document represents an individual’s perspective on the contents of
the Final Report of the WIPO Internet Domain Name Process (WIPO Report).

This document does not purport to comment on issues that are peripheral to
the written substance of the WIPO Report(s) such as:

the authority of ICANN to impose any changes onto ccTLDs.

the representative depth and width of ICANN’s constituency (it is
noted that contributors to the process represent an infinitesimal fraction
of the whole pool of internet users and stakeholders.)

and any other non-essential political or quasi-political issues

It does attempt to distil the issues down to a few key points for further
debate and consultation.

Insofar it is one individual’s perspective on the Reports from a
commercial perspective, again the writer claims no constituency from any New
Zealand business organization. Indeed it is noted that there is no equivalent to
the Northern Hemisphere’s European Internet Business Association located
within New Zealand or in the immediate surrounds.

This document in no way represents the outlook of JADE Group, the
writer’s employer, nor that of Aoraki Corporation, JADE Group’s
parent company.

Commentary Summary

Defining "abusive registrations" is a helpful step, and an
improvement on NSI’s present policy.

The writer does not agree with the concept that non-commercial
organizations and individuals cannot be in breach of intellectual property
rights, and supports a level of non-commercial, use restricted gTLDs or
ccTLDs only on implementation of a pseudonymous
registration system (i.e. contact through to the anonymous registrant via a
trusted independent 3rd party)

The introduction of new gTLDs by itself could in fact reduce the tension
between owners of marks and domain name holders through a tighter mapping of
domain name to business function of the domain. For example .SEX would be a
very identifiable and obvious method of labeling sites containing adult
material. This would circumvent the recent rash of so-called
cyber-typo-pirates (e.g. the operators of wwwbarnesandnoble.com) and also
provide a very straightforward way of controlling or monitoring the access
of such material.

The effort to provide "famous names and marks" some kind of
veto power with respect to purportedly similar domain names should be
strenuously resisted. While perhaps well intentioned, the effect will be to
give a privileged few a right that other individuals and organizations will
not enjoy. At best, it will represent a well-intentioned use of a
sledgehammer to crush an ant. At worst, it will enforce a deliberate bias to
an elite of corporate trademark holders that can leverage a committee of
experts’ approval. This is especially so, when considered in light of
the difficulty that the intellectual property community has in defining
exactly what constitutes a "famous name or mark." Unanswered
questions remain, such as how does one become a "famous name or
mark," and (just as importantly) how is a "famous name or
mark" removed following its use-by date has expired?

Michael Froomkin’s comments re errors in drafting are supported in
their totality. There are still parts of the Report that are a long way from
reaching any kind of global consensus or acceptance.

Commentary Structure

The remainder of this commentary is arranged into identical headings to that
of the WIPO Report with relevant references and comments following.

Commentary Background

It is based on the writer’s attendance at the ISOCNZ National Summit on
April 30 at Auckland. New Zealand, discussions with various NZ industry experts,
and various readings including Versions 3 and 4 (Final) of the WIPO Report,
postings from ICANN, WIPO and ISOCNZ newsgroups and various other internet based
commentaries including those of A. Michael Froomkin.

Executive Summary

Best Practices for Registration Authorities, paragraph (ii)

The writer strongly supports the collection (and enforcement of that
collection) and availability of accurate and reliable contact details. It could
be argued from a philosophical perspective that there be a facility for domain
name holders, under the aegis of political, intellectual or religious freedom,
to apply to an independent panel of experts, similar to that proposed for domain
name dispute resolution procedures. However the writer does not support any
commercial organization requiring or obtaining anonymity.

Best Practices for Registration Authorities, paragraph (iii)

This paragraph should be qualified to read, "In dispute
situations, where it can be shown that contact details are
inaccurate… Upon independent verification… …the registrar
should be required to cancel the domain name registration."

The use of "independent" in this paragraph should be qualified to
specify that this verification NOT be from the dispute arbitrators.

Administration Procedure Concerning Abusive Domain Name Registration

Paragraphs (v) and (vi) are supported in principal.

Exclusions for Famous and Well Known Marks

This is rejected in totality as previously noted in this document’s
summary. It is the writer’s opinion that such a facility would be
inequitable as well being open to abuse itself. Mom ‘n Pop websites such
as in the www.veronica.org case would be an obvious
casualty.

In terms of the quantities of cases involving tensions between trade name
holders and domain name holders, it’s fair to say that the bubble has past
with this trend. Judicial ruling after judicial ruling has recently gone in
favor of the legitimate intellectual property right holders, sometimes with
defendants not even opting to appear in court. This would seem to indicate that
the trend of abusive name registration is in fact declining with the passage of
time.

In fairness, it’s possible that legal intervention and solution prior
to court appearance may equally indicate that the problem has somewhat of an
"iceberg" profile.

The Report’s approval of new gTLDs on condition of adoption of both the
dispute resolution procedure and the famous names exclusion, is not supported.
Dispute resolution procedure yes; famous names exclusion, no.

First Steps and Outstanding Issues, paragraph (a)

Feasibility of introducing non-commercial use-restricted domains with
anonymous contact details should be indeed explored but is noted that normal
dispute resolution procedures should still apply with the provision of a
designated third party agent as an interim frontline contact. The growing trend
of Online Privacy Statement Monitors (OPSMs) could fulfil a market need for free
and independent holding and verification of end domain name holders’
contact details.

Chapter 2, paragraph 68.

Both postal and street address should be supplied.

Chapter 2, paragraph 96.

If this paragraph is applied, online real-time credit card payment must be
enabled so as to facilitate rapid registration.

Chapter 2, paragraph 98.

There should be a 3rd and final notice following 7 days grace
after a 2nd semi-final notice.

Chapter 2, paragraph 119.

Qualify this with "wilful provision of inaccurate or unreliable
information by the domain name holder with intention to deceive."
(Italics indicate writer’s additions.)

Chapter 3, paragraph 162.

Acceptance of the dispute resolution procedure should be optional but where
an appeal is made by the owner of a mark or trade name to the independent
arbitrator, then the dispute resolution procedure may proceed without the
consent of the petitioned domain name holder, once suitable notices have been
delivered to the domain name holder, their designated third party agent, or in
the absence of either, then the ISP who is operating the domain.

In other words, opting out will not protect wrongdoers, merely buy 7 days
time.

Chapter 4, paragraphs 275. 278, 280.

Any mechanism that enables exclusions for famous or well-known marks is
rigorously opposed.

Such as system, will in itself, become open to abuses of power and
mischievous or misguided grievance pursuits.